Constitution

Sen. Al Franken will kick off the 2010 ACS National Convention on Thursday, June 17 with a speech offering a "real-world perspective on what we lose when we let conservatives control our constitutional discourse."

During the Senate Judiciary Committee's confirmation hearings for Supreme Court Justice Sonia Sotomayor, Sen. Franken tackled an element of conservatives' constitutional discourse that tags progressive judges as engaging in so-called judicial activism. Franken pointed to the Supreme Court's conservative wing as evidence that it is a leading force of activism from the bench.

"The current Supreme Court has consistently struck down and questioned longstanding protections for Americans," Franken said during Sotomayor's confirmation hearings. "And I'm talking about individual rights, individual protections, individual liberties. This Supreme Court came close to overturning critical portions of the voting rights act. The Court did this despite the express powers that Congress has granted under the 15th amendment to enact this law." Franken went on to note recent Supreme Court rulings that have made it more difficult for people file lawsuits. "This is judicial activism," Frank said. "This is a Court that is willing to reverse itself to limit the rights of individual Americans. This is a Court that is more than willing to overturn Congress to achieve its own agenda of what is right."

In a press statement on the Sotomayor nomination, Franken continued that the high court's rulings have also had a detrimental impact on "the rights of Americans as employees, as small business owners, and as investors. And they've done this by overturning long-standing precedents."

Franken is the featured speaker at the Convention's Gala Dinner starting at 7 p.m. in the Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C. The Convention runs June 17 - 19. Visit the ACS Web site here, for the full Convention schedule and to register.

Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

Ellis continues:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

For other methods of constitutional interpretation, see the bookKeeping Faith with the Constitution, which was published last spring by ACS.

In an op-ed for The New York Times, constitutional scholar Geoffrey R. Stone, urges a "frank discussion ... on the proper role of judges in our constitutional system." Stone, a professor of law at the University of Chicago Law School and member of the ACS Board of Directors, says Chief Justice John Roberts' analogy of a judge as baseball umpire is "absurd."

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

Adam Liptak revisits a recent discussion between Supreme Court Justices Stephen Breyer and Antonin Scalia, which included debate over methods of interpreting the Constitution. During an event at the University of Arizona, Scalia defended "originalism" as the proper way to interpret the Constitution and Breyer countered that the Constitution would likely prove useless in today's society if it were so rigidly interpreted. Liptak maintained in his article that the two "know how to get under each other's skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm." (C-SPAN has video of the debate here.)

But what really irks Scalia and other supporters of his brand of originalism, is, Liptak reports, discussion of Brown v. Board of Education, the high court decision that concluded that school segregation violated the 14th Amendment. Brown, Liptak writes, is "hard to square with Justice Scalia's commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text."

Liptak continued:

Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.

As Liptak reported, not too long into their discussion at the University of Arizona, Breyer prodded Scalia to square originalism with the outcome of Brown.

"Where would you be with school desegregation?" Breyer asked Scalia.

But Scalia, Liptak reports, failed to provide a direct answer and instead turned his attention to the earlier high court decision in Plessy v. Ferguson, saying he would have sided with the dissent in that case. The majority in Plessy ruled that legalized segregation did not violate the Constitution.

Breyer maintains, as he did during the Arizona debate, that the words of the Constitution, if they are to have relevance today, cannot be interpreted in the framework of the 18th century. In a 2007 dissent in Parents Involved v. Seattle School District 1, Justice Breyer wrote:

For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality - not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

In their book, Keeping Faith with the Constitution, published by ACS earlier this year, authors Goodwin Liu, Pamela Karlan and Christopher Schroeder write in Chapter Three:

The unanimous Brown opinion authored by Chief Justice Earl Warren provides a rich account of constitutional interpretation and the meaning of equality as a constitutional value. What stands out in the Court's reading of the Fourteenth Amendment is its explicit rejection of originalism in favor of an interpretative approach sensitive to historical change and social context. Through Brown, we come to understand the constitutional equality not as an abstract formula or a narrow idea limited to by history, but as a moral principle that guides our public values and responds to the lived reality of contemporary social practices.

By Helen Wong, former president of the ACS student chapter at Georgetown Law

As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.

Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."

But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce."